While the First Amendment provides the freedom to associate, people often wonder about whether gang affiliation is a crime or considered free association. Generally, being a member of a gang is not in and of itself illegal; however, it is likely to lead to illegal activity which is generally punished more harshly if there is a gang affiliation. This is because many states define gangs as groups that include a purpose of committing crimes or illegal acts. However, as history has shown, figuring out who is actually in a gang is not easy.
To fight the gang problem, a majority of states have gang enhancements that can be applied to other criminal charges that will typically make the punishment, if convicted, stricter. Additionally, state and federal law enforcement maintain gang member databases, so that law enforcement can more easily determine if a suspect, arrestee, or detainee is a current or former gang member. While it may be legal to be a member, when a gang injunction has been issued, then being a gang member out in public, or even being misidentified as a gang member in public, can lead to arrest and/or prosecution.
The Gang Enhancement
When a criminal defendant is charged with a crime, a prosecutor can add a gang enhancement, if available under state law. The gang enhancement makes the underlying crime more serious of a charge as the enhancement can add additional jail time and fines on top of a sentence if convicted. However, for many reasons, gang enhancements face criticism from civil rights and youth activists.
In states like California, a gang enhancement can even have an impact on a misdemeanor conviction. While a normal misdemeanor conviction may carry a jail term of a couple weeks sometimes, that same conviction with a gang enhancement would require a mandatory minimum sentence of 180 days. Adding a gang enhancement to a felony conviction can add anywhere from a few years to the rest of a defendants life to the sentence.
The Gang Injunction
When a geographic area is considered a high crime area as a result of gang activity, local governments can seek to have courts order gang Injunctions. These allow the high gang activity areas to be more easily policed by creating a defined set of rules for the area. For instance, a gang injunction can prohibit groups of people gathering together on the street, can prohibit certain colors from being worn in clothing, can prohibit loitering or impose a curfew. If police witness any of the ordered rules being violated, they will have the ability to conduct a legal stop and be able to search who they stop.
Essentially, gang injunctions give law enforcement the ability to police with less regulation. While there are civil rights concerns, and many innocent people get annoyed by the police, courts generally require a high burden of proof to be met before a gang injunction will be issued. Additionally, courts will generally require the injunctions to be very specific in the conduct being prohibited.